The Bombay High Court has raised concerns over the increasing number of criminal cases under the Protection of Children from Sexual Offences (POCSO) Act, where individuals are accused and penalized despite the alleged victims maintaining that they were in consensual relationships. The court emphasized the importance of distinguishing between the age of consent and the age of marriage, highlighting that sexual acts can occur outside the confines of marriage and that society and the judicial system should be cognizant of global developments in this regard.
In a recent judgment, a single-judge bench of Justice Bharati H. Dangre quashed the conviction of a 25-year-old man who was sentenced to 10 years in jail for raping and sexually assaulting a 17-year-old girl. Both parties claimed to have been engaged in a consensual relationship, with the girl asserting that under Muslim law, she was considered an adult due to their Nikah (marriage). The court held that in cases of consensual sexual activity, the accused cannot be convicted based solely on the minor's age.
The High Court stressed that the criminalization of romantic relationships has overwhelmed the criminal justice system, consuming significant time and resources of the judiciary, police, and child protection systems. It highlighted the need to acknowledge the natural feelings and developments of adolescents' sexuality and called for a more informed and nuanced approach to consensual relationships among young individuals.
The court further noted that different countries have varying ages of consent, with some countries considering individuals as young as 14 capable of giving consent to sexual activity. It emphasized that India should be aware of these global developments and suggested that Parliament should reflect on this issue.
The High Court criticized the current provisions of the POCSO Act, stating that it has resulted in criminalizing consensual relationships among adolescents and creating a "grey area" in the law. It emphasized the importance of recognizing the rights of adolescents to engage in wanted sexual activities while being protected from unwanted sexual aggression. The court called for an appropriate moderation of behaviour, particularly in the era of easy access to the Internet, which has a significant impact on adolescents' lives.
In conclusion, the Bombay High Court highlighted the necessity of striking a balance between protecting children from sexual violence and respecting the autonomy and decision-making capacity of adolescents in consensual relationships.
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